child-355176_1280A Husband (Claimant) was seeking damages in deceit against his Ex-wife (Defendant) after he claimed that a child born during their marriage in 2005 was not his child.

The Husband and the Ex-wife underwent IVF when their marriage was in difficulties. The Ex-wife had attended a clinic in Spain with the Husband and then with her former partner, allowing the clinic to believe the former partner was her Husband. Subsequently, the former partner’s sperm was used for the fertilisation, although the Husband attended the birth and was registered as the child’s father.

The Husband and Ex-wife separated when the child was seven months old and later divorced. The Husband then applied for contact with the child in 2011. The Ex-wife then informed the Husband he was not the child’s father.

A fact finding hearing about the relationship of the child, Husband and former partner found that for six years the Ex-wife deliberately deceived the Husband about the child’s paternity, knowing that the biological father was in fact her former partner.

The Husband claimed for damages in deceit, including £83,497 for maintenance paid during the marriage and under a separation agreement, comprising 50% of the child’s care costs and maintenance of the Ex-wife’s property until the child reached 18 years old.

The judge Taylor J agreed with the findings of fact and awarded the Husband:

  • £10,000 in general damages;
  • £4,000 for loss of earning capacity when he was in shock at discovering the child was not his; and
  • £25,321 for sums paid towards maintaining his Ex-wife’s property.

The case highlights that as a matter of public policy; damages should not be awarded for child maintenance. Here, Taylor J distinguished between the child’s care costs which were irrecoverable and the costs of maintaining the Ex-wife’s property which were recoverable. The Husband had benefitted from his relationship with the child, whereas the Ex-wife’s earnings meant she could afford to maintain her own property and the Husband had not lived there since the child was a baby. Whether the property maintenance was paid before or after the separation, it was equally recoverable.

Case: X v Y [2015] EW Misc B10 (CC), 20 March 2015 (Bailii).